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2012 DIGILAW 456 (JK)

Des Raj v. Bhushan Kumar

2012-07-26

Sanjay Gupta

body2012
1. This revision petition has been directed against the order of Additional Dy. Commissioner kathua with powers of Agrarian Reforms Commissioner, dated 21.12.2005, by virtue of which appeal of respondents has been allowed and case has been remanded to Tehsildar Agrarian Reform Billawar, for holding fresh enquiry. 2. Petitioners have challenged the impugned order on the grounds that, their parents were in cultivating possession of land falling under khasra numbers 247, 252, 256, 259, 260, 261, 262, 310, 321, 322 and 324 since 1950, so were tenants. That parents of respondents were owner of above mentioned. The rent of tenancy was fixed as one fourth of the produce. That on 28.2.1982, mutation no. 1204 u/s 4 of Agrarian Reform Act was attested and land a was extinguished to State from owners.That on 3.1.1989, mutation no. 1416 u/s 8 of Act was attested in favour of petitioners. That the petitioner paid Rs. 12494/- and 1069.93 paisa as rent @ one fourth of the produce to owners. That petitioners became absolute owner of the said land. 3. That respondents challenged the mutation no; 1416 attested on 3.1. 1989 u/s 8 of the Act, before the Court below on 25.5.2000. That appeal was time barred and so order impugned is without provision of law. The Court below without appreciation of record, passed the order and held that tenants were paying rent @ 1/2 of the produce. 4. I have heard both the counsels at length and perused the record. From the perusal of records it appears that, Tehsildar Agrarian Reforms Billawar on 3.1.1989 attested mutation no. 1416 with regard to land and conferred ownership right on a petitioner u/s 8 of Agrarian Reform Act and mentioned rent @ 1/2 of produce. 5. Respondents filed an appeal before court below stating that mutation has been attested in ex-parte and in column 4 and 12 of mutation no. 1204 dated 28.2.82 attested u/s 4 of act, it has been recorded that tenants used to pay rent @ one half of the produce. Whereas, while attesting the mutation 1416 u/s 8 of Act, it has wrongly been mentioned that tenants were paying rent @ one fourth. Court below after appreciating the arguments, allowed the appeal and remanded the case back to Tehsildar. 6. Whereas, while attesting the mutation 1416 u/s 8 of Act, it has wrongly been mentioned that tenants were paying rent @ one fourth. Court below after appreciating the arguments, allowed the appeal and remanded the case back to Tehsildar. 6. Concluding para of impugned order is reads as under; I have due consideration to the arguments put forth by the learned counsel for the parties and have gone through the records available on the file. From the perusal of column no. 6 of purport of copy of mutation no; 1204 of village Dungran Tehsil Billawar, it is revealed that tenants used to pay the rent @ 1/2. But in the order under appeal passed on mutation no; 1401, the rent payable was recorded @ of the produce. The entry of rent of jamabandi was corrected by Assistant Commissioner vide his order dated 24.4.1991 from to 1/2. This order was upheld by the Divisional Commissioner Jammu in an appeal titled Dewan Chand and others Vs. Lachman Dass and others vide his order dated 4.3.1999. The payment of rent @ 1/2 of the produce has not been made to the ex land-lord as per the order of worthy Divisional Commissioner Jammu which has not been found challenged by the respondents in any Court of law. The delay in filing the appeal is hereby condoned as there are sufficient cause for condoning the delay in filing the appeal. Therefore the impugned order passed by the Tehsildar Agrarian Reforms, Billawar is bad in law which deserves to be set aside and case has remanded to Tehsildar Agrarian Reforms Billawar for fresh enquiry in view of the aforesaid commentary and pass afresh order under ;aw after recovering the balance rent @ one half of the produce from the tenants/respondents. Staus-quo order issued, if any, is hereby vacated. A copy of the order shall go to Tehsildar Agrarian Reforms Billawar for necessary action. This Court file be consigned to records after due completion. Announced 21.12.05 Sd/- (Charanjit Singh) KAS Addl. Deputy Commissioner Kathua with powers of Agrarian reform commissioner 7. Bare perusal of this order, it is evident that court below has based his finding that rent of tenancy was 1/2 of produce instead of 1/4 of produce, on the order of Divisional Commissioner Jammu passed on 4.3.1999. Divisional Commissioner passed this order in an appeal against the order of Asst. Bare perusal of this order, it is evident that court below has based his finding that rent of tenancy was 1/2 of produce instead of 1/4 of produce, on the order of Divisional Commissioner Jammu passed on 4.3.1999. Divisional Commissioner passed this order in an appeal against the order of Asst. Commissioner, Kathua dt.24.4.1991, whereby he passed correction of payment of rent from to 1/2 to landlord in Jama bandi. Court below also based his finding on the basis of column 6 of mutation no. 1204 attested under section 4 of act, where it has been mentioned that tenants were paying 1/2 produce as rent. 8. Agrarian Reforms Act is meant for providing land of landlord to tiller, who was cultivating the land in Kharif 1971. A tenant who was in cultivating possession of land and was paying rent to landlord would get benefit of section 4 and 8 of act. As per section 4 of Act rights, title and interest of land lord extinguishes to State, if he was not in cultivating possession of land in Kharif 1971. This follows, by conferring right as prospective owner on tenants, who were in cultivating possession of land in girdawari of Kharif 1971. 9. In present case there is no dispute with regard relationship of landlord and tenant between parties. Entries with regard to rate of rent, which was being paid to landlord by tenant, mentioned in mutation attested under section 8 of Act, shall be based upon entries made in mutation attested under section 4 of Act to this aspect. No change in entries with regard to rent paid or due to landlord can be effected in mutation attested under section 8 of Act by mutating officer. 10. Rent of land is to be dealt under Tenancy act, in term of sub rule 4 of rule 4 of Agrarian Reforms Act, 1976. It reads as under:- Rule 4 -- Dispute relating to girdawari entries (1)................ (2)................ (3)................ (4) Nothing herein contained shall empower any revenue officer to pass, or act upon any order directing an entry relating to rent, otherwise with the provision of Jammu and Kashmir Tenancy Act, Svt. 1984. 11. Divisional Commissioner is appellant authority under tenancy act, who has categorically held in order dt. 4.3.1999, that rent was 1/2 of produce instead of 1/4. By virtue of this order, Divisional Commissioner has upheld order of Asst. 1984. 11. Divisional Commissioner is appellant authority under tenancy act, who has categorically held in order dt. 4.3.1999, that rent was 1/2 of produce instead of 1/4. By virtue of this order, Divisional Commissioner has upheld order of Asst. commissioner revenue dt. 24.4.1991, who ordered correction of rent from 1/4 to 1/2 of produce in revenue record. There is thus concurrent finding of two courts and this finding has become final as it has not been challenged before any competent forum. 12. So for question of limitation is concerned, now it is cardinal principle of law that, any mutation attested in absence of a party, that mutation is held to be non est and nullity in eye of law. 13. Thus any appeal filed against the order of non est and void mutation is not considered to be time barred, if sufficient cause is shown. Section 5 of Limitation Act is enabling provision for entertaining the appeal against the order of mutation passed in ex-party or in absence of interested party, because limitation act is applicable to proceeding of appeal in term of section 22(2) of Agrarian Reforms Act. The fact that mutations has been attested in absence of interested party, amounts to sufficient cause for condoning the delay in filing the appeals, in term of section 5 of Limitation Act. So argument that appeal was time barred is not sustainable 14. This court is exercising power of revision in term of section 3 of special Tribunal Act 1986, which were previously exercised by Revenue minister in term of section 21(2) of Agrarian Reform Act. 15. Section 21 of A. R. Act, 1976 deals with appeals and revisions. It reads as under:- (1) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates. 15. Section 21 of A. R. Act, 1976 deals with appeals and revisions. It reads as under:- (1) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates. (2) The Revenue Minister may at any time call for the record of any case in which a Tehsildar or an Assistant Commissioner has passed orders in respect of evacuees land or State land or of any case in which Commissioner has passed final order and if he finds that a question of law or public interest is involved in the case, he may pass such orders thereon as he thinks fit; Provided that no order shall be passed against any party without affording that party an opportunity of being heard. 16. This section mandate that revision is maintainable before this court only against final order of commissioner and that too, if question of law or public interest is involved. So in this way, a final order and existence of question of law or public interest are sine qua for exercising revisional jurisdiction U/S 21 (2) of Agrarian Reforms Act. Revisional authority has to record its findings with respect to these conditions. 17. In present case no question of law or of public interest is involved, because finding of court below is based upon order passed by statutory authority (Divisional Commissioner) and entry made in mutation attested under section 4 of agrarian reform act. In this way finding of court below is not perverse in nature. 18. Hence revision petition is dismissed. Record of court below is sent back along with this order. File be consigned to record after due completion. File of this court shall be consigned to records after due compilation.